February 10, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1366
UNITED STATES,
Appellee,
v.
JUAN BRACHE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
Before
Torruella, Chief Judge,
Cyr and Stahl, Circuit Judges.
Francis X. Mackey on brief for appellant.
Sheldon Whitehouse, United States Attorney, and Zechariah
Chafee, Assistant United States Attorney, on brief for appellee.
Per Curiam. Juan Brache appeals from his convictions
for possession of a firearm after having been convicted of a
crime punishable by imprisonment for a term exceeding one
year, see 18 U.S.C. 922(g)(1); possession of cocaine with
intent to distribute it, see 21 U.S.C. 841(a)(1); and use
of a firearm during a federal drug trafficking crime, see 18
U.S.C. 924(c)(1). We affirm.
I.
On several occasions in April 1993, narcotics detectives
from the Providence Police Department drove by a house
located at 154 Stanwood Street, and observed Brache, known to
them as "CUBA," seated by the second-story, front window. On
April 28, 1993, a team of five detectives made an entry into
the house. Detective Drohan proceeded first. He entered the
basement from the back of the house and positioned himself
there by the base of a chimney. The rest of the team arrived
in unmarked police cars, approached the house from the front,
entered a side door, walked up the stairs to the second-floor
apartment, and entered the kitchen. As Detective Drohan
heard the other detectives walk up the stairs, he observed a
Monarch cigarette pack and a pistol fall to the floor at the
base of the chimney. The cigarette pack contained numerous
small bags of cocaine. The pistol was loaded.
Detective Gannon, who entered the kitchen first,
testified that he saw two people there, an "older" male and a
"heavy set" female. He immediately looked to the left and
saw Brache approaching the kitchen from the living room.
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Shortly after grabbing Brache and placing him in the kitchen,
Detective Gannon heard Detective Drohan radio that he had
found "something." Detective Gannon went into the living
room where he saw a space heater with a pipe that entered the
wall. He slid the pipe aside and dropped an ashtray down a
vent in the wall. The ashtray landed in the same place that
the cigarette pack and pistol had landed. According to
Detective Gannon, there was no one else in the living room.
Shortly after the experiment with the ashtray, Detective
Drohan came up to the second-floor apartment. He recognized
the "heavy set" female in the kitchen as Dawn LaCroix, a
prostitute. The "older" man in the kitchen was intoxicated.
Detective Drohan recognized him as someone he had seen
before, "hanging" in front of the liquor store on Elmwood
Avenue. Detective Drohan noticed that Brache was smoking
Monarch cigarettes and seized several empty packs from the
living room. While the detectives were present, a number of
customers knocked on the second-floor door, asked for "CUBA,"
and requested one or two bags of cocaine.
There was no fingerprint evidence linking Brache to
either the pistol or cigarette packs. The parties stipulated
that Brache had a prior conviction for a crime punishable by
imprisonment for a term exceeding one year. They also
stipulated that if the government proved beyond a reasonable
doubt that Brache possessed cocaine on April 28, 1993, then
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Brache did so knowingly and intentionally, and with the
intent to distribute it.
The defense strategy was to raise a doubt about whether
the defendant was the only person who could have dropped the
cocaine and pistol down the vent. Towards this end, the
defense called Detective Soto, who had also participated in
the raid, as a witness. Based on Detective Soto's testimony,
the jury could have found that there were up to six or seven
persons in the apartment when the narcotics team entered it,
including several Hispanic males. Richard Slowe, a private
investigator hired by the defense, testified that the house
at 154 Stanwood Street has three floors. He also testified
that when he visited the site, someone appeared to be living
on the third floor.
II.
Brache raises two issues on appeal. First, he argues
that the district court erred in refusing to allow him to ask
a prospective juror on voir dire whether the juror felt that
police officers might ever stretch the truth.1 Second, he
argues that the government's failure to disclose, until the
first day of trial, the presence of the elderly drunken man
1. The question defense counsel posed to the prospective
juror was: "Do you think that when police officers arrest
somebody sometimes, and they write out their reports and they
come to testify in court. Do you think they would ever
stretch the truth?" The government objected to the question,
and the district court sustained the objection.
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in the second-floor apartment, violated his right to the
production of exculpatory evidence under Brady v. Maryland,
373 U.S. 83 (1963). Under the circumstances, Brache argues,
the district court erred in denying his motion for a mistrial
or for a continuance. We find no error.
Where law enforcement officers are key witnesses, the
trial court must permit inquiry into whether prospective
jurors would give greater credence to the testimony of a
government agent. United States v. Anagnos, 853 F.2d 1, 3-4
(1st Cir. 1988); United States v. Pappas, 639 F.2d 1, 4-5
(1st Cir. 1980), cert. denied, 451 U.S. 913 (1981). However,
the phrasing of the inquiry is up to the judge. United
States v. Victoria-Peguero, 920 F.2d 77, 84 (1st Cir. 1990),
cert. denied, 500 U.S. 932 (1991). In the instant case, the
district court permitted the attorneys to ask the questions
on voir dire. Defense counsel took advantage of the
opportunity by asking prospective jurors questions about
their experiences with police officers. Although the
district court did not permit defense counsel to ask a
prospective juror whether he thought police officers would
ever stretch the truth, the court informed defense counsel
that he could ask jurors "whether they're more likely to
believe a police officer simply because he's a police
officer, as opposed to a lay person." Defense counsel
responded by pursuing a different line of inquiry. Under the
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circumstances, Brache cannot complain that he was precluded
from asking questions designed to weed out jurors with pro-
government bias.
We also find no Brady violation. Brady and its progeny
prohibit the government from suppressing exculpatory evidence
which is "material either to guilt or to punishment." Brady,
373 U.S. at 87. However, suppression can occur only when the
government withholds information unknown to the defendant.
See Giles v. Maryland, 386 U.S. 66, 96 (1967) (White, J.,
concurring) (observing that "any allegation of suppression
boils down to an assessment of what the State knows at trial
in comparison to the knowledge held by the defense"); United
States v. Dupuy, 760 F.2d 1492, 1501 n.5 (9th Cir. 1985); see
also United States v. Soto-Alvarez, 958 F.2d 473, 477 (1st
Cir.) (Brady rule applies only to information which had been
known to the prosecution but unknown to the defendant), cert.
denied, 113 S. Ct. 221 (1992). In the instant case, the
evidence reveals that Brache must have been aware of the
"older" gentleman's presence in the apartment at the time of
the raid. Accordingly, the government cannot be said to have
suppressed this information.
Moreover, even if we were to accept Brache's suggestion,
made below, that the government knew more than he did because
it knew who the elderly gentleman was, if not his name, we
would reject his Brady claim. The government was not
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required under Brady to turn over all relevant information;
it was only required to produce exculpatory evidence that, if
suppressed, would deprive the defendant of a fair trial. See
United States v. Bagley, 473 U.S. 667, 675 & n.6 (1985).
There is no evidence in the record that the government
interviewed the elderly gentleman, and Brache presents no
reason to believe that his testimony would prove favorable.
Under the circumstances, we cannot say that the government
withheld exculpatory evidence in violation of Brady. See
United States v. Polowichak, 783 F.2d 410, 414 (4th Cir.
1986).
We add that the district court offered, on the first day
of trial, to recess the case if Brache wanted additional time
to look for witnesses. Although defense counsel did move for
a continuance the next day, he made the request contingent
upon the court also agreeing to release Brache to assist in
the search. The district court was unwilling to release
Brache and denied the combined motion for a continuance and
temporary release. Brache makes no argument on appeal that
he should have been released. Having indicated below that he
was not interested in a continuance, unless he were also
released, Brache cannot now complain that he was not granted
one.
Affirmed. See Loc. R. 27.1.
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